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Salvaging the 2013 Federal Law Clerk Hiring Season Washington University Law Review Volume 91 Issue 1 2013 Salvaging the 2013 Federal Law Clerk Hiring Season Carl Tobias University of Richmond Follow this and additional works at: https://openscholarship.wustl.edu/law_lawreview Part of the Law Commons Recommended Citation Carl Tobias, Salvaging the 2013 Federal Law Clerk Hiring Season, 91 WASH. U. L. REV. 243 (2013). Available at: https://openscholarship.wustl.edu/law_lawreview/vol91/iss1/6 This Commentary is brought to you for free and open access by the Law School at Washington University Open Scholarship. It has been accepted for inclusion in Washington University Law Review by an authorized administrator of Washington University Open Scholarship. For more information, please contact [email protected]. SALVAGING THE 2013 FEDERAL LAW CLERK HIRING SEASON CARL TOBIAS Ten years ago, the judiciary instituted the Federal Law Clerk Hiring Plan,1 an employment system meant to regularize hiring in which most circuit and district court jurists voluntarily participated. Throughout the succeeding decade, this process operated effectively for innumerable trial judges, but functioned less well for appellate jurists. In early 2013, the U.S. Court of Appeals for the District of Columbia Circuit revealed that all its members ―will hire law clerks at such times as each individual judge determines to be appropriate,‖ concomitantly explaining ―the plan is [apparently] no longer working.‖2 With these statements, the D.C. Circuit explicitly acknowledged what had been the reality for the last decade regarding much court of appeals employment. However, the notice sparked a critical hiring frenzy among district jurists. Because that phenomenon of early district court hires may eviscerate the 2003 Hiring Plan, which substantially reduced the complications that had acutely infected the process since the 1980s, this problematic development merits review. I initially detail the clerk hiring process’ relatively checkered history, ascertaining previous endeavors to improve the clerkship scheme lacked efficacy, although the practices formulated in 2003 were successful. The piece next scrutinizes the present season, detecting that certain actions by jurists closely resemble troubling elements of measures in place before. Finding the plan’s imminent collapse essentially imposes disadvantages on law students that eclipse its benefits and finding no alternative regimen preferable, I suggest that districts and members remain committed to the procedures that have served applicants, legal education, courts and jurists well for ten years. Williams Chair in Law, University of Richmond. Thanks to Jay Bybee, Michael Higdon, Peggy Sanner, and University of Richmond colleagues for ideas, Mindy Fenick for processing, Cassie Sheehan for research, the Washington University Law Review editors for editing, and Russell Williams and the Hunton Williams Summer Endowment Fund for generous, continuing support. Errors that remain are mine. 1. ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS, FEDERAL LAW CLERK HIRING PLAN INFORMATION (Apr. 2013), available at https://oscar.uscourts.gov/assets/Federal_Law_Clerk_ Hiring_Plan_for_Download.pdf. 2. U.S. COURT OF APPEALS FOR THE D.C. CIRCUIT, NOTICE REGARDING LAW CLERK HIRING BY D.C. CIRCUIT JUDGES FOR THE 2014–2015 TERM (Jan. 29, 2013), http://www.cadc.uscourts .gov/internet/home.nsf/Content/VL%20-%20Human%20Resources%20-Law%20Clerk%20Hiring; see David Lat, The Law Clerk Hiring Plan: Really, Really Dead Now, ABOVE THE LAW (Jan. 30, 2013, 12:38 PM), http://abovethelaw.com/2013/01/the-law-clerk-hiring-plan-really-really-dead-now/. 243 Washington University Open Scholarship 244 WASHINGTON UNIVERSITY LAW REVIEW [VOL. 91:243 I. A BRIEF HISTORY OF THE HIRING PLAN Between 1985 and 2002, hiring grew more chaotic. The process steadily accelerated, while increasing numbers of judges engaged in cutthroat and unseemly competition for applicants whom they considered the best and the brightest.3 Judges premised clerk employment on limited information and, thus, could even have selected people with deficient legal, research and drafting capabilities or nominal interpersonal skills.4 To combat perceived deficiencies with the employment process, preeminent jurists of the thirteen appeals courts, whom Third Circuit Chief Judge Edward Becker and D.C. Circuit Judge Harry Edwards assembled, crafted a novel hiring plan that appeared in a March 2002 report. 5 The system placed a 2002 voluntary moratorium upon recruitment, while it encouraged jurists to interview and employ law clerks beginning their fifth semester in the next year and the future.6 The plan that emerged, capitalized on the Tuesday following Labor Day as the benchmark when students could first proffer, and courts receive, applications. Judges, correspondingly, were to delay one week before routinely scheduling possible interviews to commence seven days later, after which members could grant offers. Those practices remedied the signature difficulties, which plagued law clerk hiring some twenty years, rectifying or ameliorating concerns that prior approaches entailed. For instance, the pre-2003 approach deleteriously affected students not located in metropolitan centers, principally on the Eastern Seaboard, where proximity facilitated travel among chambers, seeming to benefit numerous applicants and jurists in the areas. The 2003 plan clearly advantaged certain students, professors, and schools. For example, this permitted students two complete years in which 3. I rely here and in the remainder of this piece on Edward S. Adams, A Market-Based Solution to the Judicial Clerkship Selection Process, 59 MD. L. REV. 129, 132–34 (2000); Edward R. Becker et al., The Federal Judicial Law Clerk Hiring Problem and the Modest March 1 Solution, 104 YALE L.J. 207, 208–12 (1994); Alex Kozinski, Confessions of a Bad Apple, 100 YALE L.J. 1707, 1714–18 (1991). 4. For a capricious, and apparently apocryphal, variation on these ideas, see Richard D. Cudahy, Judge Clueless Hires a Law Clerk, 60 OHIO ST. L.J. 2017 (1999); see also Aaron Zelinsky, Fixing the Judicial Clerkship Crisis, HUFFINGTON POST POLITICS BLOG (Jan. 30, 2013, 2:54 PM), http://www .huffingtonpost.com/aaron-zelinsky/fixing-the-clerkship-cris_b_2583485.html. 5. MEMORANDUM OF THE AD HOC COMMITTEE ON LAW CLERK HIRING (2002); Jason Hoppin, Caution Flag is Raised in Clerk Derby, THE RECORDER, Mar. 12, 2002, at 1. 6. MEMORANDUM, supra note 5; see Jeff Blumenthal, Circuit Judges to Focus on 3Ls for Clerk Hiring, LEGAL INTELLIGENCER, Mar. 12, 2002, at 1; Hoppin, supra note 5. https://openscholarship.wustl.edu/law_lawreview/vol91/iss1/6 2013] SALVAGING THE 2013 FEDERAL LAW CLERK HIRING SEASON 245 they acquired and demonstrated competence and reviewed promising career options.7 The scheme provided application and interviewing procedures that were less disruptive of routine operations, notably classes, as students could easily arrange multiple potential clerkship interviews across locales. The solution provided jurists four semesters’ academic performance on which to depend when hiring clerks. Vast numbers of trial level jurists strongly respected the plan, but their appellate counterparts decreasingly honored this alternative.8 II. THE 2013 SEASON Several factors complicate efforts to identify exactly what happened after the D.C. Circuit announced tribunal judges would cease following the plan. Most relevant information is difficult to collect, evaluate and synthesize, primarily because it seems to not be publicly available, and much of the remaining applicable material is anecdotal. There correspondingly are myriad complex variations among, and within, the country’s educational institutions that help students and the ninety-four federal courts and 1300 jurists, while applicants have diversely responded. However, I offer a descriptive catalog of recent hiring approaches essentially by relying upon accessible current information.9 Numerous prospective clerks appeared unclear about how to seek clerkships after the D.C. Circuit posting; as they had only commenced their fourth semesters, most were assuming time-intensive editorial board duties on law reviews, and few judges publicly stated 2013 hiring practices. A number of schools were uncertain about precisely how to advise students because they lacked concrete information on most jurists’ 7. Adams, supra note 3, at 135; Annette E. Clark, On Comparing Apples and Oranges: The Judicial Clerk Selection Process and the Medical Matching Model, 83 GEO. L.J. 1749, 1751–53 (1995); Louis F. Oberdorfer & Michael N. Levy, On Clerkship Selection: A Reply to the Bad Apple, 101 YALE L.J. 1097, 1100 (1992). 8. The D.C. Circuit notice affirms this and suggests that its judges were disadvantaged when others did not honor the plan. Why jurists defect is unclear and varies. Some oppose cartels, want more freedom of action, or find the plan tolerates inefficiency, nontransparency, ―cheating,‖ and ―exploding offers.‖ Kozinski, supra note 3, at 1716 (advocating a free market approach); Aaron L. Nielson, The Law Clerk Hiring Plan is Dead, and Good Riddance, NAT’L L.J., Feb. 4, 2013, available at http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202586922678&The_law_clerk_hiring_plan_is_d ead_and_good_riddance (same); Ilya Somin, The Collapse of the Judicial Law Clerk Hiring Cartel, VOLOKH CONSPIRACY (Feb. 5, 2013, 12:00 AM), http://www.volokh.com/2013/02/05/the-collapse-of- the-judicial-law-clerk-hiring-cartel/; but see Oberdorfer & Levy, supra note 7 (responding specifically
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